By Michael Collins
“My colleagues were entitled to ignore my views,” he [Zelikow] continued. “They did more than that: The  White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.” Phillip D. Zelikow, State Department Counselor, 2005-2007, to Congress, May 13, 2009
Former legal counsel to the Department of State, Phillip Zelikow, produced a convincing and elegant argument for the immediate cessation of anything that looked like torture in February 2006. The government declassified the memo last week and National Security Archive released it on April 3.
The failure to follow Zelikow’s clear statement of the law, withholding the memo without justification, and the failure to prosecute those responsible for the previous acts represent evidence of crimes.
Phillip Zelikow is the ultimate establishment insider. He took leave from his academic appointments at the University of Virginia to assist in the 2001 presidential transition. He helped Condoleezza Rice develop the doctrine of preemptive war after 9/11, and served as executive director of the 9/11 Commission. In that role, Zelikow shielded the Bush administration from responsibility for their epic failures associated with the attack.
When it came to blatant violations of laws that any rational person could understand, Zelikow had finally reached his limit.
Zelikow began by noting that prior to the McCain Amendment, Justice and State had agreed on the conduct of CIA interrogations outside the United States. Through some distorted logic, the government concluded that it could violate the UN Convention Against Torture even though it clearly prohibits enhanced interrogations activities committed by signatories wherever they may occur.
“The situation has now changed. As a matter of policy, the U.S government publicly extended the prohibitions against cruel, inhuman, degrading treatment to all conduct worldwide. And then, as a matter of law, the McCain Amendment extended the application of Article 15 of the Convention Against Torture to conduct by U.S. officials anywhere in the world.” Phillip Zelikow, The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture, Feb 15, 2006
There was no argument on the geographical reach on the McCain amendment’s ban on “cruel, inhuman, and degrading” treatment of any prisoners of the U.S. government anywhere. The amendment is clear: “Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.” McCain Amendment No. 1977, October 2005
Zelikow made a point of writing that the new standards “apply directly to the enhanced interrogation techniques employed by the CIA.” From the date of this memo, the political and permanent employees of the State and Justice Departments knew clearly that enhanced interrogations had been thoroughly stripped of any legal justification.
Zelikow elaborated on restrictions created by the cruel and unusual standard for prisoner treatment by pointing out that courts “used terms like serious deprivation of human needs or conditions which deprive inmates of the minimal civilized measure of life necessities.“ The standard also restricted the use of “methods of interrogation that shock the conscience.” Citing U.S. Supreme Court cases, shocking the conscience includes holding prisoners incommunicado, prolonged questioning, and threatening to kill the prisoner.
This was drawn directly from the McCain Amendment with incorporates the Fifth, Eighth, and Fourteenth Amendments to the Constitution as the criteria for against cruel, inhuman, degrading. Zelikow’s memo drives home the restrictions on prisoner treatment and abuse: “Under American law there is no precedent for excusing treatment that is intrinsically cruel even if the state asserts a compelling need to use it.”
Zelikow didn’t have to write this memo or even get seriously involved in the prisoner treatment issue. He was counsel to the Secretary of State and Justice had the lead on this issue. However, his conscience must have been shocked when he saw the administration’s plan to defy the law in such a blatant way. The Bush signing statement attached to the law was meaningless since the Amendment could only be modified by Congress.
The Bush administration had no intention of following the law. By November 2006, the American Civil Liberties Union unearthed orders by Bush for the very practices that were outlawed as clearly outlined by Zelikow’s memo.
Criminal acts arising from the Zelikow memo
Zelikow’s memo was an argument to dissuade illegal behavior that he saw endorsed by the 2006 Department of Justice. The memo is also a clear description of the law. It outlines the case for prosecuting those involved at any point after their acts to defy the law.
The memo makes clear that successive Justice Departments to this day have ignored their obligation to prosecute those responsible for outlawed interrogations. This would make all those responsible but failing to prosecute eligible for charges under the honest services fraud law of 1988. That law makes it a federal crime for government officials to fail to do their jobs since citizens have an “intangible right to honest services” (in this case, the expectation that federal officials violating prisoner treatment laws be prosecute).
Finally, Zelikow’s charge that the Bush administration hid and tried to destroy his memo shows a conspiracy to withhold evidence. Withholding or destroying evidence can be used as a proof of guilt in criminal and civil cases.
We would be unwise to lose any sleep over the prospects of prosecutions. This is all part of the looking forward policy used by President Obama as an excuse to avoid investigating the Bush administration (and now his own) for any violations of law from prisoner interrogation to the lies that were used to manipulate the people into briefly tolerating the Iraq invasion and occupation .
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